Revision notes - marriage and divorce PDF

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Introduction to family lawTerm 1 - adults Marriage, nullity and divorce  Financial provision on divorce  Financial provision for unmarried couples  Domestic violenceTerm 2 – children Legal parentage  Parental responsibility  Private law disputes over children  Public law – child protectionDe...

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Lecture 1/2

Introduction to family law

Term 1 - adults    

Marriage, nullity and divorce Financial provision on divorce Financial provision for unmarried couples Domestic violence

Term 2 – children    

Legal parentage Parental responsibility Private law disputes over children Public law – child protection

Definitions and context 

What do we mean by ‘family’?

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What is different about family law?

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How does the family justice system operate?

What do we mean by ‘family’? How do we decide who is ‘family’? -

Law takes a mixture of all these

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Genetic – formal link

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Formal ties

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Social

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Psychological – who feels like family to us? Relationships to pets

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Functions – a family is what a family does, if you perform the functions of a family should you be recognised as one?

Idea of the family as a pre-legal concept 

Is the ‘family’ natural? – family acts independanty from the aw

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‘Subjects such as contract or trusts are based on a legal construct, a concept that springs from the mind of the lawyer but that has no correspondent in the material world . . . It is otherwise with family law. The subject is organised around a notion—the family—which is taken for granted and is not legally defined.’ (K. O’Donovan, Family Law Matters (Pluto Press, 1993), p.10).

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But how far is this claim justified?

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Note also the recent debates as to whether concepts such as ‘marriage’ and ‘family’ have a natural and immutable meaning, or are legal constructs that can be changed in line with societal change -

Law and society all play a role in what we think of as ‘family’ – same sex marriage – opponents argued that marriage and family had natural meanings that couldn’t be changed by law BUT marriage is a legal construct that can be changed overtime

Family law in the 1950s 

P.M. Bromley, Family Law (1957): ‘we may regard the family as a basic social unit which consists normally of a husband and wife and their children.’ -

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No recognition of same sex, childless marriages

‘may be no bad thing that by this decision it is shown that, in the Christian society in which we live, one, at any rate, of the privileges which may be derived from marriage is not equally enjoyed by those who are living together as man and wife but who are not married’ Gammans v Ekins – [1950] 2KB 328 CA, per Evershed MR -

Claimant in this case was male (court struggled to see males as dependants) - surviving co-habitant held not to be part of the deceased’s family – of its time – “Christian”- law can shape societys behaviour – wanting to deter people from living together without being married

The evolving recognition of different types of couples as ‘family’  

Increased focus on children rather than the relationship of marriage Cohabitants with children: Hawes v Evenden [1953] 1 WLR 1169

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Heterosexual cohabitants without children: Dyson Holdings Ltd v Fox [1976] QB 503 - 1970s saw a big rise in the numbers of cohabitation – law was having to react to the social change

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Same-sex cohabitants: Fitzpatrick v Sterling HA [2001] 1 AC 27

Human rights and families – Article 8 – ECHR 1. Every one has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority …. except such as is in accordance with the law and is necessary…

c21st families 

‘in our multi-cultural and pluralistic society the family takes many forms . . . There may be one, two, three or even more generations living together under the same roof . . . Children live in households where their parents may be married or unmarried. They may be the children of polygamous marriages. They may be brought up by a single parent. Their parents may or may not be their natural parents . . . Some children are brought up by two parents of the same sex . . .’ (Singh v Entry Clearance Officer, New Delhi [2004] EWCA Civ 1075, Munby J)

Family type

With Without dependent dependent Total families children children

Married couple family

4,944

7,890

12,834

Opposite sex married couple family

4,938

7,862

12,800

28

34

Same sex married couple family 6 Civil partner couple family

8

47

55

Cohabiting couple family

1,251

2,040

3,291

1,246

1,943

3,190

Opposite sex cohabiting couple

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family Same sex cohabiting couple family

4

97

101

Lone parent family

1,781

1,037

2,817

All families

7,983

4

18,997

Source: Labour Force Survey, Office for National Statistics

How does the law recognise different types of families, and what should its role be in family life? 

Focus of law and policy is on couples rather than blood relationships

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Burden v UK [2008] 2 FCR 244 -

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Facts: civil partnerships allowed same sex couples to be allowed into legally recognised relationships? Burden sister brought a claim that their inability to have a civil partnership (access to the rights associated) – discriminatory – inheritance tax – if you’re married and you die and you leave your property to your spouse they don’t have to pay inheritance tax (40% of £320,000). Lived together forever When the first of them died they would have to sell the house to pay the tax. Issue: what about other family members? Should blood family members be allowed to enter into a civil partnership Held: the relationship of blood relatives to couples is fundamentally different so there is no infringement of rights

A qualitatively different relationship? -

“the relationship between siblings is qualitatively of a different nature to that between married couples and homosexual civil partners under the United Kingdom’s Civil Partnership Act. The very essence of the connection between siblings is consanguinity, whereas one of the defining characteristics of a marriage or Civil Partnership Act union is that it is forbidden to close family members (...) The fact that the applicants have chosen to live together all their adult lives, as do many married and Civil Partnership Act couples, does not alter this essential difference” (Burden and Burden v UK (2008) 47 EHRR 38, para 62)

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What is different about family law? Role of discretion 

family law judges have a lot of discretion – child arrangements, financial settlements – theyre just given a list of factors – not a check list to apply

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‘[o]ne of the frustrations of family law, as well as one of its fascinations, is that no two cases are ever the same’ (Wall L.J., B v B (Ancillary Relief) [2008] EWCA Civ 543 para.54).

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Note implications for role of cases as precedents and the role of appellate courts (G v G (Minors: Custody Appeal) [1985] 1 WLR 647) -

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Difficult when it comes to precedents – PQs – look at the most likely approach considering how they have decideded a number of earlier cases C of A – not looking at whether the judge applied the law correctly – instead have to look at whether it was very unreasonable Would have to be very unreasonable for a decision to overturn

Reflects a specific set of ideas about how the law should respond to families: focus on what people do, consequences of rights, individualised decision-making cf rules/principles

Adjudication looks to the future as much as the past 

Judges trying to look at solutions that will work into the future -

Division of assets – not what happened in the past - looking at how to set people up for the future

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Reluctance to engage with traditional issues of fault and responsibility

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‘The decision-making process involves making value assessments of future behaviour and ability to fulfil responsibilities, and the exercise of judicial discretion. This core function of family adjudication, while it requires objectivity on the part of the judge, is different from the objective process involved in reaching a verdict required in most areas of the law.’ [HH Judge Fricker, ‘Family Law is Different’ [1995] Fam Law 306]

Problems of enforcement 

‘Family law is inherently unenforceable in the traditional sense since it attempts to regulate intimate human relationships…. it is not possible, through a restrictive divorce law, to force a harmonious domestic

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relationship on the unhappy. If… family law is to have any real influence on family behaviour it is more likely to be at the conceptual level – through what it attempts to tell us about desirable or acceptable models of family life’: A. Bainham, ‘Changing families and changing concepts – reforming the language of family law’ (1998) 10 CFLQ 1. 

Making family law more restrictive – shouldn’t be forcing people to stay in marriages

Importance of a contextual approach 

Family trends/stats look at how families operate

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‘It has become axiomatic that the subject can only be understood in its social context, a context that has been illuminated both by empirical study and a plundering of the allied disciplines of sociology, social administration, and social and critical theory.’ (J. Dewar, ‘Policy Issues in Law and the Family’, ch 5 in Wilson (ed) Frontiers of Legal Scholarship (1995)).

How does the family justice system operate?  

Big changes in recent years Headline cases, reported cases and typical cases – family law newsworthy – celebrity couples – approach with caution

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Family law disputes make good headlines - but is the reporting always accurate? -

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Numerous cases are reported – but how can we evaluate their significance? -

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http://www.familylawweek.co.uk/site.aspx?i=ho0

Most family disputes are resolved outside court -

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http://www.transparencyproject.org.uk/

Cuts in legal aid Deliberate policy to take family law out of the courts

Government policy has moved towards delegalisation of family disputes

Family Justice Review 2011 recommended 

Single family court

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Dispute resolution - mandatory mediation information and assessment meeting (MIAM) -

Assess whether your case is suitable for mediation – is required before any private family law dispute – have to have a MIAM

Single family court (since 22 April 2014) 

Conceptual reorginisation – things start at the lowest level possible – magistrates, county, high court – but all within the family court

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Single point of entry

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Case allocation on complexity

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Appeal within the Family Court to the next level of Judge, or from CJ or HCJ to the CA

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Aim – simpler, more efficient system

Government ‘encouragement’ to use mediation 

Children and Families Act 2014 s10 – statutory basis for MIAM for all cases (with exemptions)

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Cartain cases where you don’t have to have a MIAM – domestic violence

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Motivations: cheaper – no lawyer, less conflictual and less likely to lead to conflict.

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Works better for couples that chose it – rather than people that are forced to do it

The problems with mediation 

Barlow et al have argued that mediators must develop more effective screening for and responses to domestic violence - including ‘proper risk assessments, advising and assisting parties to obtain legal aid where possible, and collaborative working with domestic violence services and pro bono legal services to ensure victims are adequately supported and not coerced into detrimental agreements.’ (Barlow, A, Hunter, R, Smithson, J and Ewing, J, Mapping Paths to Family Justice: Resolving Family Disputes in Neoliberal Times (Palgrave Macmillan, 2017)

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Only a small amount of cases are deamed suitable for mediation

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One party might not be seeking public funding so doesn’t need to attend the MIAM so only one party will show up

The lack of alternatives 

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO)

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Legal aid is gone for legal advice

Impact of LASPO on private law cases 

Drop in publicly-funded mediation (though still eligible) – solicitors promoted mediation but now people don’t have lawyers to encourage them

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Significant rise in litigants in person (LIPs) – don’t know how to present a case – don’t know what is legally relevant – leads to wrong decisions

Key debates in current family law 

How should disputes between family members be resolved?

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What is the appropriate balance between autonomy and protection?

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Should rights and responsibilities be determined by need, entitlement, faith or fault?

Creating lawful marriages and civil partnerships FORMAL RELATIONSHIPS BLOCK 1. Formation – definitions, eligibility, consequences, equality issues • Context • Legal significance • Opposite sex marriage • Civil partnership • Same sex marriage • Residual equalities issues 2. Nullity and non-marriage • Void • Voidable • Non-marriage • Presumption of marriage 3. Divorce and dissolution - Ground - Process

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Reform

What are the legal questions you will be able to answer after the lecture? 

Who can enter into a valid marriage or civil partnership?

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What are the processes that couples wishing to marry or enter into a civil partnership must observe?

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What are the similarities and differences between opposite and same sex marriage and civil partnership?

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What are the current legal challenges and proposals for reform?

Why is this area important? 

Affects an issue of profound social, emotional and cultural significance -

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Continuing differences between the options available to same-sex and opposite-sex couples raise questions about parity of treatment -

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Culture – wedding party but it is a legal event which the state can then regulate

Differences between marriage – not ‘equal’ marriage

New questions are emerging on account of the increasingly diverse – religiously, culturally and linguistically – population of England and Wales -

Laws not designed with modern society in mind

Who cannot marry or enter into a civil partnership? 

Those within the prohibited degrees of relationship – cannot be too closely related

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Those under 16

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Those already married or in a civil partnership – bigamy

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Opposite-sex couples cannot form a civil partnership – but this will change

Prohibited degrees of relationship

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Consanguinity (full or half) – blood relationships -

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parent–child grandparent–grandchild brother–sister uncle–niece aunt–nephew BUT can marry cousins

Affinity – legal relationships -

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Relationship has been unequal so should be prohibited Used to be a lot more affinities but now theres only 2 Marriage with step-(grand)child unless both are 21 or over and younger party was not ‘child of the family’ – two step children are still allowed to be married even though they have been brought up as brother and sister Adoptive parent and adopted child Doesn’t cover cohabiting relationships – even if you have coparented a child – the rule is reflecting previous society where there were not many coupes cohabiting – should be reformed

Age 

Parental consent needed if aged 16 or 17

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But note rising age of marriage – rare for couples to marry under the age of 20

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Arguments in favour of raising age to 18 to combat forced marriage – law needs to change with societal issues

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Marriage and Civil Partnership (Minimum Age) Bill 2017-19 – likely to pass – highering the age of marriage

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Marital status 

If either is already legally married or in a civil partnership the second union will be void (MCA 1973 s.11(b)) -

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Going through a second ceremony of marriage while married may also constitute the crime of bigamy -

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Only allowed one of the formal legal relationships at a time

Not automatically bigamy – there are defences Can only commit bigamy if youre married – not a civil partnership – instead you will be commiting purgary – but the punishments are the same and will likely have the same impact

Polygamous marriages cannot be contracted in England and Wales or by a person domiciled here (MCA 1973 s.11(d)) -

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If you have your main residence overseas, where polygamy is allowed and you move to the UK then that marriage will be recognised BUT if they live in the UK they cannot just go overseas, get married and come back with a legally recognised marriage Depends on domicile

Determining gender 

Marriage regarding someone who is transgender

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Individual may apply to Gender Recognition Panel for change of legal gender if

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over 18 has or has had gender dysphoria has lived in acquired gender for 2 years prior to application and intends to live this way until death n.b. does not require any gender reassignment surgery – more about self definition

Can formalise a relationship in new gender once full certificate is granted (but see lecture 3…)

Civil Partnership Act 2004 

Allowed same-sex couples to register as civil partners – gain the same right and responsibilities

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Mirrors marriage in almost all respects – marriage in everything but name

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Didn’t really achieve marriage because it doesn’t have the same label – cultural associations with marriage

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Came into force on 05/12/05

Extension of marriage 

Introduced by cconseravtives/lib dems – coalition initiative

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Marriage of same-sex couples is lawful (s.1(1))

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Permits conversion of CP into marriage (s. 9)

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Recognition in E&W of same-sex marriages from other parts of the UK and abroad (s. 10)

Effect of extension 

In the law of England and Wales, marriage has the same effect i...